Coalition for Good Governance et al v. Raffensperger et al

Filing 43

ORDER GRANTING Defendant's 32 Motion to Dismiss and DENYING Plaintiff's 11 Motion for Preliminary Injunction, 20 Motion for Preliminary Injunction, and 27 Motion for TRO. The Clerk is directed to close this case. Signed by Judge Timothy C. Batten, Sr. on 05/14/2020. (usw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

COALITION FOR GOOD
GOVERNANCE; RHONDA J.
MARTIN; JEANNE DUFORT;
AILEEN NAKAMURA; B. JOY
WASSON; and ELIZABETH
THROOP,
Plaintiffs,
CIVIL ACTION FILE
v.
NO. 1:20-cv-1677-TCB
BRAD RAFFENSPERGER, in his
official capacity as the Secretary
of State of the State of Georgia;
and REBECCA N. SULLIVAN,
DAVID J. WORLEY, MATTHEW
MASHBURN and AHN LE, in
their official capacities as
members of the Georgia State
Election Board,
Defendants.

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ORDER
I.

Background
This case involves challenges to Georgia’s upcoming June 9

primary election in light of the COVID-19 outbreak. Plaintiffs Coalition
for Good Governance, Rhonda Martin, Jeanne Dufort, Aileen
Nakamura, Joy Wasson, and Elizabeth Throop filed this case against
Defendants Brad Raffensperger in his official capacity as Secretary of
State, along with Rebecca Sullivan, David Worley, Matthew Mashburn,
and Ahn Le in their official capacities as members of the Georgia State
Election Board.
Plaintiffs seek postponement of the election until June 30, along
with myriad other changes to the voting process. Specifically, Plaintiffs
seek an order requiring polling locations to use paper ballots rather
than the new touchscreen ballot marking device (“BMD”) component of
the State’s new Dominion Voting System.1 Plaintiffs contend that the
touchscreens are not suitable for use during the COVID-19 outbreak

The BMD is the subject of another lawsuit in this Court. See Curling v.
Raffensperger, No. 1:17-cv-2989-AT (N.D. Ga. filed Aug. 8, 2017).
1

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because the virus can survive for two to three days on plastic and on
stainless steel, and cleaning a BMD screen requires powering it down,
disinfecting it with special chemicals, drying, and rebooting, which
would need to occur after each use.
Plaintiffs also allege various problems with absentee voting that
would render it an unacceptable alternative to in-person voting.
Specifically, they argue that the lack of secrecy envelopes in some
absentee ballots violates the right to a secret ballot. They also allege
that the unreliability and delays in the United States Postal Service
lead to a likelihood that absentee ballots will not be as effective as inperson votes.
Plaintiffs request various forms of relief related to absentee
voting. Specifically, they seek an extended deadline for receipt of the
ballots; facilitated distribution and acceptance; speed processing
(requiring the Secretary to allow superintendents to process and
prepare mail ballots beginning the Monday before Election Day, and for
tabulation not before the close of the polls); counted non-duplicated
March ballots; a corrected My Voter webpage about when the ballots
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were issued; mailed ballots to corrected addresses; information and
instruction sheets and secrecy inner envelopes; letters with instructions
and date/deadline information mailed to voters who have previously
been mailed a ballot that has not yet been completed and received,
along with secrecy inner envelopes and instructions for ballot packets; a
statewide press release explaining the election date; instructions for
completing and timely delivering completed ballots; and instructions for
using secrecy envelopes.
In addition, Plaintiffs seek various forms of relief regarding inperson voting such as adjusting the number of voting stations,
expanding early voting, implementing curbside voting and temporary
mobile voting centers, streamlining voter check-in, offering stateprovided personal protective equipment (“PPE”), and increasing
physical distancing.
Plaintiffs have moved [11, 20, 27] for a temporary restraining
order or preliminary injunction granting them the relief they seek.
Defendants have moved [32] to dismiss Plaintiffs’ claims. On May 14,
after notifying the parties that they should be prepared to discuss all
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grounds raised in Defendants’ motion to dismiss, the Court held a
hearing on the parties’ motions.
II.

Legal Standards
A.

Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint
provide “a short and plain statement of the claim showing that the
pleader is entitled to relief[.]” This pleading standard does not require
“detailed factual allegations,” but it does demand “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Under Rule 12(b)(6), a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Chandler v. Sec’y of Fla. Dep’t of Transp., 695
F.3d 1194, 1199 (11th Cir. 2012) (quoting id.). The Supreme Court has
explained this standard as follows:
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
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“probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Iqbal, 556 U.S. at 678 (citation omitted) (quoting Twombly, 550 U.S. at
556); see also Resnick v. AvMed, Inc., 693 F.3d 1317, 1324–25 (11th Cir.
2012).
Thus, a claim will survive a motion to dismiss only if the factual
allegations in the complaint are “enough to raise a right to relief above
the speculative level . . . .” Twombly, 550 U.S. at 555–56 (citations
omitted). “[A] formulaic recitation of the elements of a cause of action
will not do.” Id. at 555 (citation omitted). While all well-pleaded facts
must be accepted as true and construed in the light most favorable to
the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011),
the Court need not accept as true the plaintiff’s legal conclusions,
including those couched as factual allegations, Iqbal, 556 U.S. at 678.
Thus, evaluation of a motion to dismiss requires two steps:
(1) eliminate any allegations in the pleading that are merely legal
conclusions, and (2) where there are well-pleaded factual allegations,
“assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
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B.

Preliminary Injunction

To obtain a preliminary injunction, Plaintiffs must demonstrate
that (1) their claims have a substantial likelihood of success on the
merits; (2) they will suffer irreparable harm in the absence of an
injunction; (3) the harm they will suffer in the absence of an injunction
would exceed the harm suffered by Defendants if the injunction is
issued; and (4) an injunction would not disserve the public interest.
Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d
1242, 1246–47 (11th Cir. 2002). The likelihood of success on the merits
is generally considered the most important of the four factors. GarciaMir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).
III. Discussion
The Court assumes, without deciding, that Plaintiffs have
standing. Nonetheless, their claims will be dismissed because they
present a nonjusticiable political question.
“A federal court has no authority to review a political question.”
McMahon v. Pres. Airways, Inc., 502 F.3d 1331, 1357 (11th Cir. 2007)
(citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803)). “The
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political question doctrine protects the separation of powers and
prevents federal courts from overstepping their constitutionally defined
role.” Id. (citing Baker v. Carr, 369 U.S. 186, 210 (1962)). A case may be
dismissed on political question grounds if it would require the Court to
decide a question with one of the following characteristics:
[1] a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a political
decision already made; or [6] the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.
Id. at 1357–58 (quoting Baker, 369 U.S. at 217).
Here, at least two of the characteristics are present: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate
political department, and (2) a lack of judicially discoverable and
manageable standards for resolving it.
It is especially important during crises such as the present one
involving a medical pandemic that the Court hew closely to the
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Constitution’s original imperatives. This starts with the Elections
Clause, which commits the administration of elections to Congress and
state legislatures—not courts. The Framers of the Constitution did not
envision a primary role for the courts in managing elections, but instead
reserved election management to the legislatures. Absent pellucid proof
provided by plaintiffs that a political question is not at issue, courts
should not substitute their own judgments for state election codes. No
such proof has been adduced here.
Moreover, Plaintiffs acknowledge that executive-branch officials
at all levels have undertaken measures to slow the spread of the
coronavirus. And obviously, Plaintiffs are unsatisfied with those efforts.
But whether the executive branch has done enough is a classic political
question involving policy choices. Thus, it is not properly before the
Court.
Even if the Court could address the question, answering it with
any degree of certainty would be impossible, as there are no judicially
discoverable and manageable standards for resolving it. This is why
courts should not second-guess coordinate branches of government on
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matters explicitly committed to them. In this sense, this case is much
like Rucho v. Common Cause, 139 S. Ct. 2484 (2019), in which the
Supreme Court rejected efforts to have federal courts articulate the
definition of “fairness” and “how much is too much” in the context of
partisan gerrymandering.
In a recent Eleventh Circuit case, Judge William Pryor noted that
a nonjusticiable political question should preclude jurisdiction where
“[t]here are no discernable and manageable standards ‘to answer the
determinative question’: How much partisan advantage from ballot
order is too much?” Jacobson v. Fla. Sec’y of State, No. 19-14552, 2020
WL 2049076, at *18 (11th Cir. Apr. 29, 2020) (William Pryor, J.,
concurring) (quoting Rucho, 139 S. Ct. at 2501). Similarly here, there
are no discernable and manageable standards to decide issues such as
how early is too early to hold the election or how many safety measures
are enough.2

The real problem here is COVID-19, which all but the craziest conspiracy
theorists would concede is not the result of any act or failure to act by the
Government. And that fact is important when weighing the Defendants’
management of the election. Specifically, this is not a case in which the state
applied its own policy, adopted a rule, or enacted a statute that burdened the right
to vote. In other words, this is not Burdick v. Takushi, 504 U.S. 428 (1992), or
2

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Ultimately, ordering Defendants to adopt Plaintiffs’ laundry list of
so-called “Pandemic Voting Safety Measures” would require the Court
to micromanage the State’s election process. The relief Plaintiffs seek
bears little resemblance to the type of relief plaintiffs typically seek in
election cases aimed to redress state wrongs.
Because Plaintiffs’ claims present a nonjusticiable political
question, Defendants’ motion to dismiss will be granted.3
IV.

Conclusion
For the foregoing reasons, Defendants’ motion [32] to dismiss is

granted. Plaintiffs’ motions [11, 20, 27] for a preliminary injunction or

Anderson v. Celebrezze, 460 U.S. 780 (1983). The former involved an Ohio statute
that imposed an early filing deadline for independent candidates; the latter involved
Hawaii’s state-imposed policy against write-in voting. Here, the underlying burden
on the right to vote emanates from a virus, which obviously was not created or
imposed by Defendants. While Plaintiffs contend that Defendants have done a poor
job of responding to that virus, the fact that the virus’s provenance was not through
Defendants further increases, in this Court’s opinion, the impropriety of judicial
intervention. All of the election cases cited by Plaintiffs in which injunctive relief
was granted involved a burden on the right to vote that was created by the
Government. Not so here.
Even if the Court were not inclined to dismiss Plaintiffs’ claims, it would not
grant the injunctive relief Plaintiffs request. Because of the lack of judicially
discoverable and manageable standards discussed above, Plaintiffs have not carried
their burden of showing that they are likely to succeed on the merits.
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temporary restraining order are denied. The Clerk is directed to close
this case.
IT IS SO ORDERED this 14th day of May, 2020.

____________________________________
Timothy C. Batten, Sr.
United States District Judge

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